Vermont Law Top 10 Environmental Watch List 2015

Waters of the United States Rule

If and when a final 'Waters of the United States' rule is published, legal challenges will surely follow. March 25, 2014, the Army Corps of Engineers and the Environmental Protection Agency issued a proposed rule to clarify and refine the definition of “waters of the United States” in the Clean Water Act. The proposed rule represents the agencies’ first comprehensive attempt in nearly 30 years to revisit this issue, which has particular significance for the scope of federal regulatory jurisdiction over wetlands. The Supreme Court has severely criticized the agencies for failing to issue an updated rule, and the agencies are now attempting to make amends.

The Clean Water Act broadly regulates the addition of any pollutant, including material like soil used to fill in wetlands, to “navigable waters,” which the act, with studied ambiguity, defines as “the waters of the United States, including the territorial seas.” In an early case, the Supreme Court upheld the Army Corps’ assertion that it held the exclusive authority to issue permits for any alterations to wetlands adjacent to traditionally navigable waters. But, in a subsequent case, the Supreme Court struck down the Army Corps’ effort to regulate the filling of non-navigable, isolated, intrastate wetlands under the Clean Water Act.

Most recently, in Rapanos v. United States, the Supreme Court issued a badly splintered decision on the issue of whether wetlands bordering on tributaries to traditionally navigable waters should be regarded as waters of the United States. Justice Antonin Scalia, writing for a plurality of the court, concluded that such wetlands are covered by the Clean Water Act only if there are permanent hydrologic connections between the wetlands and traditional navigable waters. Justice Anthony Kennedy concluded that the Clean Water Act applies if there is a “significant nexus” between the wetlands and navigable waters. Commentators scratched their head, trying to puzzle what exactly a “significant nexus” might be. The four dissenters would have upheld the agencies’ categorical approach of treating all wetlands bordering on tributaries of navigable waters as waters of the United States.

The Rapanos decision left the agencies and the lower courts in considerable disarray. The EPA and the Army Corps of Engineers generally attempted to follow the Supreme Court’s direction by asking whether a particular wetland was subject to the Clean Water Act under either the Scalia test or the Kennedy test. Environmentalists sought to persuade Congress to adopt a clarifying amendment to the act, but that effort failed. Now, the EPA and the Army Corps of Engineers have together stepped into the breach and proposed a comprehensive amendment to the existing rule defining waters of the United States, an effort which presumably will be welcomed and accorded considerable deference by the courts.

The proposed rule narrows the regulatory definition of waters of the United States, as mandated by the recent Supreme Court cases. But the agencies, relying on extensive scientific evidence about the ecological connections between wetland destruction and downstream water quality, seek to exercise the authority they retain to achieve the act’s overarching goal of controlling water pollution. The proposed rule identifies certain waterbodies that always qualify as waters of the United States; most notably, these include all tributaries of navigable waters, even if the water flows in the tributaries are only ephemeral or intermittent. The rule also provides that other waters may qualify as waters of the United States, but only upon a specific showing that these waters, alone or in combination with other waters in the region, have a “significant nexus” to a navigable waterway. Another part of the proposal, designed to provide greater security to the regulated community, offers an expanded list of waters and features that are exempt from regulation under the act.

The agencies recently extended the comment period on the proposed rule until Nov. 14.If and when a final rule is published, legal challenges will surely follow. Perhaps someday the American people will learn what “waters of the United States” really means.